This morning, the Federal Circuit released a nonprecedential opinion. In it, the court affirmed a judgment in a case appealed from the Court of Appeals for Veterans Claims. Notably, Judge Mayer dissented. Here are the introductions to the majority and dissenting opinions.
Forsythe v. McDonough (Nonprecedential)
David Forsythe appeals a decision from the United States Court of Appeals for Veterans Claims holding that the pre-decision evidentiary notice he received from the Department of Veterans Affairs was legally sufficient. Because we find that the agency did not have to wait until he submitted a claim to provide an evidentiary notice, and that, regardless, the timing of the notice was not prejudicial, we affirm.
MAYER, Circuit Judge, dissenting.
If the Department of Veterans Affairs (“VA”) is to fulfill its duty to serve veterans injured in the line of duty, see 38 U.S.C. § 1110, it must, at a minimum, provide clear and timely notice regarding how to file and substantiate a claim for service-connected disability benefits. On this front, implementation of 38 C.F.R. § 3.159(b)(1), the VA’s regulation related to its responsibility to notify a veteran of the evidence necessary to develop a claim, falls far short of the mark. . . . I would remand this case for the VA to apply its regulation.